Gulf War May Have Blazed a Trail for International Law
AMID the rubble and death of the Persian Gulf war, it's hard to conjure images of human progress. Yet something new - and easily overlooked - has happened in the past seven months: This war was started, fought, and is being followed with more attention to law - international law - than any conflict in history. And if law is indeed grease for conflict and glue for civilization, then perhaps more than the bombs got smart in 1991.
From the start, events in the Gulf progressed with incredible, legalistic order. The objectives of the war were established by legal action of the Security Council under the United Nation's "constitution," its Charter. Likewise, Iraq's defeat was acknowledged not at a meeting of generals in the desert, but on a piece of paper handed to the UN Secretary General in New York.
During the war, our military leaders talked often and clearly about the Geneva Conventions, and how scrupulously they were complying with the ban against aiming at civilian targets. They successfully cast Saddam Hussein as an outlaw by hammering at his "illegal" invasion of Kuwait and vilifying him for failing to comply with international law governing prisoners of war and treatment of noncombatants.
War crimes trials for the Iraqi leadership, as well as lower-level violators, are now discussed in the context of the post-World War II Nuremberg and Tokyo trials, the only true precedents for prosecuting the vanquished with due process in an international tribunal. And soon, the UN may create unique legal machinery to handle damage claims it authorized against Iraq - the biggest tort court the world has ever known.
Even if this reliance on law stems from nothing but expediency, it may well signal a historic change in perception. Consider simply that the norms of civilized behavior the United States has held itself and Saddam Hussein up against are barely 40 years old, codified only after the catastrophe of World War II.
The UN Charter, the basic code of international behavior; the four Geneva Conventions on the rules of war; the Nuremberg trials, which branded the architects of aggressive war as criminals - all were set down in the late 1940s.
As on the American frontier, vigilantes and outlaws have outpaced judges and marshals ever since the law formally arrived. Obviously they still do. But acceptance and enforcement of the law always trails its plodding development. Now, the US has set a new standard for itself as the enforcer of international law. Granted, the dynamics of world power have changed, but would the US now feel as free as it did five years ago to withdraw from compulsory jurisdiction of the International Court of Justice becau se the court agreed to rule on the legality of American intervention in Nicaragua? Could the objections of the Organization of American States to the invasion of Panama be waved off as quickly this year as last?
Do law and its mechanisms this time signal new order in a more lawful world, or just new clothes on the old adage about victors and spoils? After all, not long ago the US stood silently by while Iraq unleashed aggression, used lethal gas, and violated virtually all the Geneva Conventions.
But now, having laid down the law and set an example for less powerful members of the international family, the US may be forced to follow its own leadership. The frontier is by no means closed, but it may be that the distant hoofbeats of the circuit-riding judge can be heard approaching.